Not Just a Piece of Cake

As the Great British Bake Off ran in its infinitely inferior[1] Channel 4 guise[2], the Supreme Court was ruminating over the much-awaited Lee v Ashers Baking Company Ltd[3]. On October 10th, the court ruled in favour of the bakers, but the filling wasn’t quite what was expected.

Lee v Ashers is one of a recent string of cake-themed cases involving the right of a baker to refuse to bake a cake with a pro-homosexuality message. The facts are crucial: Lee wanted a custom cake decorated with the message ‘support gay marriage’; the owners of the company, the MacArthurs, Christians who opposed homosexuality, refused. Neither the MacArthurs, nor Lee, knew of the others’ religious belief or sexual preferences.

The Judgement, uncharacteristically thin, ruled against Lee. The case was being argued on two grounds: first, that Lee had faced discrimination on the basis of his sexual preference, homosexuality, contrary to the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006[4]. Second, if this ground failed, the discrimination based on the political belief was in breach of the Fair Employment and Treatment (Northern Ireland) Order 1998 (“FETO”).[5]

In opposition, the counsel for the MacArthurs argued the first and second grounds were incorrect, but if upheld then they were in breach of the baker’s Article 9 and 10 rights. As such, FETO should be read down in accordance with s3(1) of the HRA (1998)[6]

Step One

Lee won in the Court of Appeal[7]: there, the court used a different recipe than the Supreme Court and found the bakers’ refusal was a case of direct discrimination. Lady Hale, channeling Mary Berry, corrected them on their sloppy reasoning.

She highlighted, per the Trial Judge’s finding of fact, there was no discrimination on the grounds of sexual preference. The objection was the message[8],“not the messenger”: the litmus test for such discrimination was whether they would have refused anyone, gay, straight, or green, asking for a cake with the message. The answer: yes, the bakers would have regardless of the customer. Thus, Lee’s argument that the message was ‘indissociable’ from his sexual preference was rejected.

The ancillary arguments that message was benefiting homosexuals in particular and that it was a case of associative discrimination were binned. It could benefit the entire community, or anyone who supported gay pride[9]. There had to be specific third parties who was the cause of the treatment to the claimant: gay people in general cannot be used to surreptitiously change the flavour of the claim.

Step Two

On the second ground, of political or religious discrimination, the court was more sympathetic. They ruled there was discrimination on the grounds of a political opinion, support for gay marriage[10], contrary to FETO Art 1(a)[11]. However, the attitude of the court was al denteat best.

There was a substantial amount of hedging in whether the message qualified here as a protected right[12]. The court’s main reservation was the idea that the bakers would be forced to provide a cake contrary to their political beliefs: ‘It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.’[13]However, it is submitted that this analytical kneading properly belongs in the next stage of the analysis. Surely discrimination on grounds of a political belief exists regardless of the action which is being changed? Someone is prima facie (albeit to different degrees) being persecuted regardless of whether they are being refused a sale or a career.

Step Three

Clearly not satisfied with how the bake was starting to look, counsel for the MacArthurs argued FETO should be read down. Effectively, that the baker’s Art 9 and 10 rights, freedom of thought and religious beliefs, outweighed the interests protected by FETO.

However, this section of the case is potentially the most problematic. The judgement seemed to be missing parts. The court glazed over what could genuinely be seen as the most critical element of the case, the court’s appraisal of the fundamental balancing of rights, with a single paragraph:

“In my view they would be entitled to refuse to do that whatever the message conveyed by the icing on the cake -support for living in sin, support for a particular political party, support for a particular religious denomination… in my view, FETO should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so”

Although it states the court’s position, it does not exactly say why it does. Without such reasons, it is hard to see how similar bakes will go in future cases. When is the right to conscience triggered – surely not in any cake message or personalised item; what are the marginal cases, and how strong must it be to overcome the obligation not to discriminate on the basis political beliefs?

In any event, the court read down (perhaps to vanishing point) FETO insofar as it was inconsistent with the bakers’ Art 9 and 10 rights.

Time’s Up Bakers!

Time’s up, but what have the supreme court actually baked? It’s no tart, but it doesn’t taste like quiche. Either way, it savours of concealed judicial policy, with writers[14]arguing it will could legitimise discrimination under the guise of a so called ‘conscience clause’. Indeed, there is the unspoken, but evident possibility, that a baker whose conscience is offended by baking a cake supporting gay marriage would also have qualms about serving the customer themselves.

However, it would be wrong to see the decision as the judges favouring the bakers in this way. Rather, what seems to have happened is the courts, in the light of uncertainties over the potential for actual discrimination and difficulty in weighing subjective conscientious protests, have turned to a factual, case-by-case analysis. Though unarticulated, this is likely a scale in which the legitimacy of the idea and force of the conviction is measured against the strength of the message and nature of the circumstance. Justice is sweet, but in this case it belongs to the discretion of the judges.

Across the Pond

Unexpectedly, this is not the only cake based discrimination case. At first glance, the recent US decision in Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission[15]seems to be identical. A 7-2 majority in the SCOTUS ruled against a finding by the The Colorado Civil Rights Commissionthat a Christian baker refusing to sell a cake to a homosexual customer was discrimination.

However, though the icing looks similar, the sponge is fundamentally different. The case was not struck down because, as commentators from the both sides have argued[16], it reaffirmed the right to free speech over discrimination. Instead, it reached the decision on the ‘narrowest grounds possible’[17]: that of improper procedure by the commission, leaving theissue of homosexual discrimination up in the air.

Several parallels in this case cast light on Lee v Ashers. Firstly, there was internal division within the Supreme Court over whether baking a cake for a gay marriage was a political statement. Alito and Thomas argued it was, triggering freedom of expression, and thus should be scrutinised closely. Conversely, Ginsberg wanting a slice of the action, argued a cake-maker did not necessarily make a statement by baking a cake – the product would reasonably be seen as reflecting the views of the customer, not the baker.

It will be interesting to see how this scenario will be applied in the United Kingdom. Would refusing to bake a cake for a gay marriage be associative discrimination? Contra Lee there is a reference to a clear third party: the groom.

Likewise, Ginsberg also disagreed with the majority on the disentanglement of message and identity. Gorsuch and Alito argued the case of a baker refusing to bake an anti-homsexual cake was similar to the Masterpiece instance. However, as we have learned in Lee, there are important differences in separating the two. Conflating the two creates the risk direct discrimination will be dismissed on the policy arguments applicable to political discrimination.

For the next episode, we see potential contestants in Virginia, Wisconsin, Utah[18] all looking for the right ‘vehicle’, that is, a case free from procedural or factual uncertainty, to take the issue to the top. Once the right ingredients do come along, it is crucial this distinction between message and identity is maintained.